DERRICK K. WATSON, District Judge.
Plaintiff Donna Lynch, proceeding pro se, brings unspecified claims against the lender, loan servicer, and assignee of a 2007 mortgage on her real property in Maui that was sold at a 2010 non-judicial foreclosure sale. Although her First Amended Complaint lacks specific claims, Lynch appears to seek rescission of the mortgage and invalidation of the foreclosure sale, due to fraud in the origination of the loan and during the foreclosure proceeding. The First Amended Complaint, however, suffers from several of the same deficiencies as Lynch's original Complaint, as described in the Court's November 15, 2016 Order Granting Defendants' Motion To Dismiss With Leave To Amend. See Dkt. No. 40 (11/15/16 Order). Because Lynch's indeterminate claims did not cure the deficiencies previously identified by the Court, are not alleged with the particularity required by Federal Rule of Civil Procedure 9(b), are time-barred, or otherwise fail to state a claim for relief, Defendants' Motion to Dismiss is granted. For a second time, Lynch is granted leave to file an amended complaint— no later than October 6, 2017—limited by and consistent with the instructions below. The Court denies Lynch's requests for a further extension of time in which to file additional briefing.
Lynch brings claims against Defendants Federal National Mortgage Association ("Fannie Mae"), Countrywide Home Loans, Inc. ("Countrywide"), and Bank of America, N.A. ("BANA"), in an effort to set aside the non-judicial foreclosure sale of her real property located at 66 Haku Hale Place, Lahaina, Hawaii 96761 ("Property"), which took place on June 17, 2010 under a power of sale from a 2007 Mortgage. First Amended Complaint ("FAC") ¶¶ 29-31, Dkt. No. 46; Defs.' Ex. A (2007 Mortgage), Dkt. No. 50-1.
According to Lynch, the 2010 foreclosure sale was "illegal and fraudulent," due in part to a "forged Assignment made in 2009 from MERS to BAC and a notice of Foreclosure naming solely BAC Home Loans and [which] never mentioned Fannie Mae who was the original investor from the inception of the loan." FAC ¶¶ 29, 35. Lynch alleges that—
FAC ¶¶ 47-49, 51.
The FAC further alleges that the 2007 Mortgage was improperly procured by employees of Countrywide and that she is a victim of a nationwide mortgage fraud conspiracy known as the "Hustle." See FAC ¶¶ 43-179. According to Lynch, Countrywide employees contacted her in 2007 to inform her that she needed to refinance her 2005 mortgage, also with Countrywide, because "an internal [Countrywide] audit found that the 2005 loan was `invalid and/or illegal.'" FAC ¶ 68. Lynch alleges that the 2007 loan application was "crafted in Ventura, California by Steven Gillespie at Countrywide," who was "Lynch's sole contact via phone throughout the refinance process," and that he "convinced Lynch that her 2005 loan was no longer valid and without a refinance she would no longer own her home or have homeowner's insurance." FAC ¶¶ 76-78. According to Lynch, "[i]n addition to escalating the appraisal market value again this time to $850,000, the first mortgage amount terms and interest rates, [Countrywide] added a $77,000 2nd mortgage in an 80/20 deal that Lynch was not expecting." FAC ¶ 74. Moreover, "[o]n the day of signing, since Lynch had a medical disability and could not drive, a representative from CHL came to her house." FAC ¶ 82.
Lynch alleges that the following improper lending practices by Countrywide were part of a larger scheme to defraud—
FAC ¶¶ 83-88, 91-94.
Lynch contends that the loan servicer, BAC, and Fannie Mae "committed intrinsic fraud, such as filing materially false [nonjudicial foreclosure] documents. . . in the Hawaii Bureau of Conveyances [and] in Court . . . wherein they knowingly concealed the real party in interest, the actual mortgagee, owner and investor [Fannie Mae], throughout the entire nonjudicial foreclosure process." FAC ¶ 173. Lynch asserts that "the documents [recorded] in the Bureau of Conveyances [("BOC")] since 2007 have been fraudulent and have irreparably harmed [her]." FAC ¶ 31.
Lynch filed her original Complaint in state court while the ejectment action was pending.
Defendants move to dismiss the FAC with prejudice for failure to state a claim upon which relief can be granted. Dkt. No. 49. Following several extensions of time from the Court, Lynch filed her opposition to Defendants' Motion on July 25, 2017 (Dkt. Nos. 60 and 61), and Defendants timely filed a reply by the August 14, 2017 deadline (Dkt. No. 63). After the close of briefing, on August 21 and 22, 2017, Lynch filed additional requests to extend the briefing deadlines to allow her to supplement her opposition and for leave to file an amended complaint. See Dkt. Nos. 64 and 65. The Court addresses each of the motions below.
Federal Rule of Civil Procedure 12(b)(6) permits a motion to dismiss for failure to state a claim upon which relief can be granted. Pursuant to Ashcroft v. Iqbal, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" 555 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007)). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id. Accordingly, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555). Rather, "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). Factual allegations that only permit the court to infer "the mere possibility of misconduct" do not constitute a short and plain statement of the claim showing that the pleader is entitled to relief as required by Rule 8(a)(2). Id. at 679.
Because Lynch is proceeding pro se, the Court liberally construes her filings. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) ("The Supreme Court has instructed the federal courts to liberally construe the `inartful pleading' of pro se litigants.") (citing Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam)). The Court recognizes that "[u]nless it is absolutely clear that no amendment can cure the defect . . . a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal of the action." Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995); see also Crowley v. Bannister, 734 F.3d 967, 977-78 (9th Cir. 2013). A court may, however, deny leave to amend where further amendment would be futile. See, e.g., Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir. 2008) (reiterating that a district court may deny leave to amend for, among other reasons "repeated failure to cure deficiencies by amendments previously allowed . . . [and] futility of amendment").
Even liberally construed, the allegations in the First Amended Complaint are deficient for several reasons. First, the allegations of fraudulent conduct once again fall short of the particularity required by Federal Rule of Civil Procedure 9(b). Second, the Complaint fails to provide sufficient factual content to permit the Court to draw the reasonable inference that any Defendant is liable for the misconduct alleged. Moreover, many of the claims relating to the 2007 loan origination are time-barred. Defendants' Motion is therefore granted, but with limited leave to amend consistent with the instructions below.
As a preliminary matter, the FAC does not comply with Rule 8, which mandates that a complaint include a "short and plain statement of the claim," Fed. R. Civ. P. 8(a)(2), and that "each allegation must be simple, concise, and direct." Fed. R. Civ. P. 8(d)(1).
The Court first addresses the allegations of fraud throughout the FAC. Lynch primarily alleges that the 2007 Mortgage was fraudulently procured by Countrywide and that its recordation on May 15, 2007 was likewise fraudulent. See FAC ¶¶ 31, 173-84, 226, 290.
Lynch's claims sounding in fraud are subject to a limitations period of six years under HRS § 657-1(4). Mroz v. Hoaloha Na Eha, Inc., 360 F.Supp.2d 1122, 1135 (D. Haw. 2005) (citing Eastman v. McGowan, 86 Haw. 21, 946 P.2d 1317, 1323 (1997)). As to when the statute of limitations period for a fraud-based claim begins to run:
Fields v. Nationstar Mortg. LLC, 2015 WL 5162469, at *4 (D. Haw. Aug. 31, 2015) (citation omitted).
Defendants move to dismiss as time-barred any fraud-based claims relating to the origin of the 2007 Mortgage. Although the FAC does not allege the dates of Lynch's encounters with Defendants' agents, including Mr. Gillespie at Countrywide, the loan documents were executed by Lynch on May 3, 2007 and the Mortgage was recorded May 15, 2007 at the BOC as Document Number 2007-086966. Defs.' Ex. A at 1, 15. The 2007 Mortgage itself contains the loan terms that Lynch claims were misrepresented and fraudulently recorded. Thus, Lynch is charged with constructive knowledge of the contents of the Mortgage by May 15, 2007. In fact, Lynch had actual notice of the contents of the Mortgage when she signed the document before a notary on May 3, 2007. See Defs.' Ex. A at 15. Lynch filed her original Complaint in this matter in state court on April 4, 2016. In other words, whether the statute of limitations began to run on May 3, 2007 or May 15, 2007, Lynch failed to file her Complaint within the six-year limitations period.
A claim may be dismissed under Rule 12 as "barred by the applicable statute of limitations only when `the running of the statute is apparent on the face of the complaint.'" Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (quoting Huynh v. Chase Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 2006)). Such motion should be granted "only if the assertions of the complaint, read with the required liberality, would not permit the plaintiff to prove that the statute was tolled." Morales v. City of Los Angeles, 214 F.3d 1151, 1153 (9th Cir. 2000) (citation omitted); see also Trost v. Embernate, 2011 WL 6101543, at *2 (D. Haw. Dec. 7, 2011). Although Lynch alleges that she suffered a stroke in 2005 or 2006, she does not allege that she was under duress, incapable of decision making, or that she was unable to understand her legal rights or manage her affairs when she refinanced the loan in May of 2007. See FAC ¶ 301 ("I had a slight stroke in 2005/06, several extensive surgeries to remove tumor and reconstruction of sinus, 819 jaw joint, bone grafts and temporal flap, much swelling in head, confusion, disorientation."); id. ¶ 82 ("On the day of signing, since Lynch had a medical disability and could not drive, a representative from [Countrywide] came to her house."). Lynch does not allege that at the time she refinanced the loan in 2007 or when she executed the Mortgage documents recorded with the BOC, that she was unable to understand the nature or effect of her acts. That is, even liberally construed, there are no allegations in the FAC to establish grounds for equitable or statutory tolling with respect to the 2007 Mortgage refinancing.
Federal Rule of Civil Procedure 9(b) requires that, when fraud or mistake is alleged, "a party must state with particularity the circumstances constituting fraud or mistake." Fed.R.Civ.P. 9(b). An allegation of fraud is sufficient if it "identifies the circumstances constituting fraud so that the defendant can prepare an adequate answer from the allegations." Neubronner v. Milken, 6 F.3d 666, 672 (9th Cir. 1993) (internal citations and quotations omitted). "Averments of fraud must be accompanied by the who, what, when, where, and how of the misconduct charged." Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009) (quoting Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003)). A plaintiff must also explain why the alleged conduct or statements are fraudulent. In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1548 n.7 (9th Cir. 1994) (en banc), superseded by statute on other grounds by 15 U.S.C. § 78u-4.
Fraud claims must additionally be pled consistent with state law. In Hawai`i—
Prim Liab. Co. v. Pace-O-Matic, Inc., 2012 WL 263116, at *8 (D. Haw. Jan. 30, 2012).
Lynch does not properly allege the circumstances that constitute fraudulent conduct by Countrywide with respect to the 2007 Mortgage. The FAC does not sufficiently identify such facts as the times, dates, places, or other details of the alleged fraudulent activity. Neubronner, 6 F.3d at 672. Nor does the FAC explain how the alleged increase in the appraised value of her home and subsequent cash-out refinancing amounted to fraud by Countrywide. See FAC ¶¶ 186-202. Lynch alleges that—
FAC ¶¶ 284-85. Lynch fails to address how any of this alleged conduct is fraudulent and fails to explain the meaning or import of the "CLUES data [that] differed significantly from reality." See In re GlenFed, Inc. Sec. Litig., 42 F.3d at 1548 n.7. These allegations fall short of the particularity required by Rule 9(b).
Nor does Lynch satisfy the Rule 9(b) pleading requirements with respect to the 2010 nonjudicial foreclosure proceeding. She alleges generally that Defendants concealed the identity of Fannie Mae and filed "false" documents with the BOC and state courts, as follows—
FAC ¶¶ 173-74, 279-281. These legal conclusions devoid of factual enhancement fall far short of the particularity required by Rule 9(b) for averments of fraud, and, moreover, fail to state a plausible claim for relief.
Fraud claims, "in addition to pleading with particularity, also must plead plausible allegations. That is, the pleadings must state `enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [the misconduct alleged].'" Cafasso ex rel. United States v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 (9th Cir. 2011) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 566 (2007)). Lynch summarizes her theory that the 2010 foreclosure sale was fraudulent in the following manner—
FAC ¶ 289.
To the extent Lynch's claims are premised on a promised loan modification from sometime in 2009 throughout the pendency of this litigation, the FAC fails to offer sufficient details as to the time, place, or content of the allegedly fraudulent statements. Further, the fraud claims with regard to a potential loan modification appear to be based on future events or inferences of mere broken promises.
In sum, the FAC both fails to state a plausible claim for fraud and also to satisfy the particularity requirements of Rule 9(b). Defendants' Motion is GRANTED with respect to claims sounding in fraud. Because amendment may be possible, however, Lynch is granted one final attempt to cure the deficiencies in her fraud-based claims. She may not, however, re-allege any claims that are time-barred.
The Court previously dismissed with leave to amend Lynch's statutory quiet title claim. See 11/15/16 Order at 6-7 (dismissing claim under HRS § 669-1(a), which provides that a quiet title "[a]ction may be brought by any person against another person who claims, or who may claim adversely to the plaintiff, an estate or interest in real property, for the purpose of determining the adverse claim"). Although the FAC does not expressly re-allege a statutory quiet title claim, Lynch makes reference to the clouded state of the Property's title—
FAC ¶¶ 290-91.
To the extent Lynch seeks to quiet title to the property, the FAC once again fails to allege that she is able to tender the amount of indebtedness. See Nat'l Mortg. Ass'n v. Kamakau, 2012 WL 622169, at *9 (D. Haw. Feb. 23, 2012) ("A basic requirement of an action to quiet title is an allegation that plaintiffs are the rightful owners of the property, i.e., that they have satisfied their obligations under the [note and mortgage].") (internal quotation marks and citation omitted); Benoist v. U.S. Bank Nat'l Ass'n, 2012 WL 3202180, at *10 (D. Haw. Aug. 3, 2012) ("[T]ender is required, regardless of whether the claim is based on common law or statute."); Caraang v. PNC Mortg., 795 F.Supp.2d 1098, 1126 (D. Haw. 2011) ("In order for mortgagors to quiet title against the mortgagee, the mortgagors must establish that they are the rightful owners of the property and they have paid, or are able to pay, the amount of their indebtedness.").
Despite the Court's prior directions, Lynch does not allege that she has paid the outstanding loan balance or that she is able to do so. For these reasons, Lynch again fails to state a claim for quiet title, and any such claim must be dismissed. Because the Court previously granted leave to amend, and Lynch failed to correct the deficiencies in the FAC, to the extent such a claim is asserted, dismissal is without further leave to amend.
The Court previously dismissed with leave to amend Lynch's claims that BANA violated RESPA, 12 U.S.C. § 2605, based upon a series of communications regarding the terms of the 2007 Mortgage and her attempted loan modification. See 11/15/16 Order at 15-17. The FAC does not expressly re-allege the dismissed RESPA claim, but refers to BANA's purported failure to respond to a 2009 Qualified Written Request ("QWR") sent by her attorney. See FAC ¶ 303 ("Orig in 2009 my atty at the time Mr. Gary Dubin sent a QWR/rescission of the loan in July 2009. To my knowledge to this day it was never responded to.").
To the extent Lynch attempts to assert a claim for violation of 12 U.S.C. § 2605(e) based on BANA's failure to respond to a QWR, her allegations are deficient. Lynch asserts in only the most vague terms the existence of a QWR—Lynch does not attach a copy of the request, does not describe the content of any communications, including whether they concerned the servicing of her loan, as defined by RESPA, and generally does not describe the communications in sufficient detail to determine whether they triggered a duty to respond.
Any RESPA claim further fails because the FAC does not allege any actual damages. Under 12 U.S.C. § 2605(f)(1), Lynch has the burden to plead and demonstrate that she has suffered damages. Because damages are a necessary element of a RESPA claim, failure to plead damages is fatal. See, e.g., Rey, 2012 WL 253137, at *5 (citing Esoimeme v. Wells Fargo Bank, 2011 WL 3875881, at *14 (E.D. Cal. Sept. 1, 2011) (dismissing claim where the plaintiff failed to "allege any pecuniary loss from defendant's alleged failure to respond to the QWR")); Shepherd v. Am. Home Mortg. Servs., 2009 WL 4505925, at *3 (E.D. Cal. Nov. 20, 2009) ("[A]lleging a breach of RESPA duties alone does not state a claim under RESPA. Plaintiff must, at a minimum, also allege that the breach resulted in actual damages.") (quoting Hutchinson v. Del. Sav. Bank FSB, 410 F.Supp.2d 374, 383 (D.N.J. 2006)). Indeed, although the requirement that a borrower plead damages is interpreted liberally, "the [borrower] must at least allege what or how the [borrower] suffered the pecuniary loss." Ash v. OneWest Bank, FSB, 2010 WL 375744, at *6 (E.D. Cal. Jan. 26, 2010).
Lynch fails to allege a RESPA claim against any party, and Defendants' Motion is GRANTED as to this claim. Because the Court previously granted leave to amend, and Lynch failed to correct the deficiencies in the FAC, to the extent a RESPA claim is asserted, dismissal is without further leave to amend.
Defendants seek dismissal of any ECOA violation alleged in the FAC. See 15 U.S.C. § 1691. In its 11/15/16 Order, the Court dismissed with leave to amend Lynch's claims that BANA violated ECOA and Regulation B by failing to notify her within 60 days of "the action taken on [her] loan modification application." 11/15/16 Order at 17-18 (quoting Complaint ¶ 39). It is unclear whether Lynch seeks to re-allege an ECOA claim in the FAC. However, to the extent she does,
First, Lynch does not allege that she is a member of a protected class. Under Section 1691(a)(1), it is unlawful to discriminate against any applicant on the basis of race, color, religion, national origin, sex or marital status, or age. The FAC, like the original Complaint, is silent in this regard. Second, any ECOA claim related to BANA's non-response or denial of her modification application once more fails to allege that Lynch was even qualified to receive a modification or to allege any facts from which the Court could infer she was qualified to receive any modification. Accordingly, Lynch fails to state a claim for violation of ECOA.
The Court therefore GRANTS Defendants' Motion and dismisses any ECOA claim alleged in the FAC. Because the Court previously granted leave to amend, and Lynch failed to correct the deficiencies in the FAC, to the extent an ECOA claim is asserted, dismissal is without further leave to amend.
Although unclear, to the extent Lynch seeks to re-allege a claim under HRS Chapter 480, the FAC again fails. See FAC ¶ 294 ("In this case the underlying deceit and falsified real party of interest continues throughout the entire proceedings."); id. at ¶ 296 ("The repeated pattern of deceptive behavior is tied directly to the initial [nonjudicial foreclosure] process and procedure, Court actions and continue today.").
Pursuant to Section 480-13, a successful UDAP claim must establish three elements: (1) a violation of HRS chapter 480; (2) which causes an injury to the plaintiff's business or property; and (3) proof of the amount of damages. Davis v. Four Seasons Hotel Ltd., 122 Haw. 423, 435, 228 P.3d 303, 315 (2010). Section 480-2(a) states: "Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are unlawful." The Hawaii Supreme Court "has described a deceptive act or practice as having the capacity or tendency to mislead or deceive." Courbat v. Dahana Ranch, Inc., 111 Haw. 254, 261, 141 P.3d 427, 434 (2006) (citation and quotation marks omitted).
Moreover, a UDAP claim cannot be based on any alleged failure to offer a loan modification because Lynch has not established a right to such modification. And to the extent her UDAP claims are based on BANA's refusal to modify the loan or negotiate in good faith, she does not present a sufficient factual basis for the alleged promise to modify the loan, or subsequent "bait and switch." See Dias v. Fed. Nat. Mortg. Ass'n, 990 F.Supp.2d 1042, 1055 (D. Haw. 2013).
Consequently, any UDAP fails to satisfy the particularity requirement of Rule 9(b) and fails to state a claim under Rule 12(b)(6). Because amendment may be possible with respect to her claims sounding in fraud as discussed above, dismissal is with limited leave to amend.
Generally "[r]escission is only a remedy, not a cause of action." Bischoff v. Cook, 118 Haw. 154, 163, 185 P.3d 902, 911 (App. Ct. 2008). The remedy thus "rises or falls with the other claims." Phillips v. Bank of Am., 2011 WL 240813, at *9 (D. Haw. Jan. 21, 2011) (citation and brackets omitted). To the extent Lynch seeks rescission of the 2007 Mortgage, she fails to state an affirmative claim for relief or that she is entitled to the remedy she seeks.
Rescission may be possible under HRS § 480-12. However, a plaintiff seeking affirmatively to void a mortgage transaction under Section 480-12 must be able to "place the parties in as close a position as they held prior to the transaction." See, e.g., Skaggs v. HSBC Bank USA, N.A., 2010 WL 5390127, at *11 (D. Haw. Dec. 22, 2010); see also Beazie v. Amerifund Fin., Inc., 2011 WL 2457725, at *12 (D. Haw. June 16, 2011) ("Indeed, avoidance of a contract and restitution and/or rescission, i.e., treating the agreements as void ab initio and placing the parties in the positions they held prior to the transaction, go hand-in-hand to carry out this result and prevent a windfall to one party."); Lee v. HSBC Bank USA, 121 Haw. 287, 292, 218 P.3d 775, 780 (2009) (holding that where an agreement created at a foreclosure sale is void and unenforceable for failure to comply with HRS § 667-5, then "[t]he high bidder at such a sale is entitled only to return of his or her down payment plus accrued interest").
Lynch does not allege she has the ability to tender loan proceeds back to the lender, as necessary to obtain rescission. See, e.g., Young v. Bank of N.Y. Mellon, 848 F.Supp.2d 1182, 1193-94 (D. Haw. 2012) ("[A] plaintiff seeking affirmatively to void a mortgage transaction under § 480-12 must be able to `place the parties in as close a position as they held prior to the transaction.'") (quoting Skaggs, 2011 WL 3861373, at *11); Au v. Republic State Mortg. Co., 2013 WL 1339738, at *13 (D. Haw. Mar. 29, 2013).
To the extent Lynch requests an order rescinding or setting aside a state court order in the ejectment action or with respect to the nonjudicial foreclosure sale, she has not established any entitlement to the relief she seeks. Aside from the deficiencies with the individual causes of action noted above, any claims relating to final state court judgments are likely barred by the Rooker-Feldman doctrine. Under Rooker-Feldman, federal district courts are precluded from reviewing state court judgments in "cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings and inviting district court review and rejection of those judgments." Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005).
In sum, the Court grants Defendants' Motion to Dismiss and grants Lynch limited leave to amend. Claims alleged in the FAC relating to (1) the origination of the 2007 Mortgage loan refinancing; (2) statutory quiet title; (3) RESPA violations; and (4) ECOA violations, are dismissed with prejudice and may not be re-alleged. Because Lynch was previously granted leave to amend her allegations to attempt to cure the specific deficiencies identified in the Court's 11/15/16 Order, and having either been unable to do so or having abandoned these claims, any further attempt to amend these particular claims would be futile. In recognition of her pro se status, Lynch is once more permitted limited leave to amend, with specific instructions detailed more fully below.
The Court GRANTS limited leave to file an amended complaint, consistent with the terms of this Order, by
If Lynch chooses to file an amended complaint, she must write short, plain statements, which clearly allege the following: (1) the constitutional, statutory, or common law right she believes was violated; (2) the name of the defendant who violated that right or law; (3) exactly what that defendant did or failed to do; (4) how the action or inaction of that defendant is connected to the violation of law; and (5) what specific injury Plaintiff suffered because of that defendant's conduct. See Rizzo v. Goode, 423 U.S. 362, 371-72 (1976). Plaintiff must repeat this process for each person or entity named as a defendant. If Plaintiff fails to affirmatively link the conduct of each named defendant with the specific injury suffered, the allegation against that defendant will be dismissed for failure to state a claim. Plaintiff should include separate counts or causes of action for each claim. See E.E.O.C. v. Glob. Horizons, Inc., 2011 WL 5325747, at *15 (D. Haw. Nov. 2, 2011) (Noting that "it would certainly `promote clarity' if Plaintiff separated its multiple causes of action into distinct counts rather than stringing together sixty-one paragraphs without meaningful delineation between them and direct[ing] Plaintiff to do so if it chooses to file an amended complaint pursuant to this Order."); cf. Bautista v. Los Angeles Cty., 216 F.3d 837, 840-41 (9th Cir. 2000) ("Courts have required separate counts where multiple claims are asserted, where they arise out of separate transactions or occurrences, and where separate statements will facilitate a clear presentation.") (citations omitted).
An amended complaint generally supersedes a prior complaint, and must be complete in itself without reference to the prior superseded pleading. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), overruled in part by Lacey v. Maricopa Cty., 693 F.3d 896 (9th Cir. 2012) (en banc). Claims dismissed without prejudice that are not re-alleged in an amended complaint may be deemed voluntarily dismissed. See Lacey, 693 F.3d at 928 (stating that claims dismissed with prejudice need not be re-alleged in an amended complaint to preserve them for appeal, but claims that are voluntarily dismissed are considered waived if they are not re-pled). Lynch may not re-allege any claims dismissed with prejudice.
The amended complaint must designate that it is the "Second Amended Complaint" and may not incorporate any part of the original Complaint or First Amended Complaint. Rather, any specific allegations must be retyped or rewritten in their entirety. Failure to file an amended complaint by
Following the conclusion of briefing on Defendants' Motion, Lynch filed two requests for additional extensions of time to oppose the Motion and to file an amended complaint. See 8/21/17 Mot. to Extend, Dkt. No. 64; 8/22/17 Mot. to Extend, Dkt. No. 65. On August 24, 2017, Defendants filed an Objection, asking the Court to deny Lynch's requests, or, in the alternative, to appoint a Guardian ad litem on behalf of Lynch pursuant to Federal Rule of Civil Procedure 17(c). Dkt. No. 67. The Court DENIES Lynch's requests and DENIES as moot Defendants' request to appoint a Guardian ad litem.
Lynch asserts that her original Opposition, filed July 25, 2017 (Dkt. Nos. 60 and 61), was "incomplete" and she therefore seeks "to respond and Oppose the Motion to Dismiss and Request[s] to Amend [her] Complaint," and asks for an extension of six weeks to accomplish this filing. Dkt. No. 65 ¶ 11. Her professed "intention is to file [her] response and request to amend with the second amended complaint at the same time." Id. at 7, ¶ 17. No proposed amended complaint was included with her request. Lynch did, however, include a note from a medical provider, Tim Kaneda, PA-C, MHS, suggesting that she is "unable to type."
Lynch initiated this civil action considerably over one year ago—on April 4, 2016. Despite that period of time, the pleadings have yet to close, largely because of the extensions of time and continuances requested by Lynch. See Dkt. Nos. 13, 16, 21, 42, 52, 54, 56, and 58. In light of her pro se status and, on repeated occasions, her professed confusion and inability to meet litigation demands, the Court accommodated Lynch and granted her requests for extension. If, however, she no longer intends to diligently prosecute the civil action that she initiated, Lynch retains the ability to voluntarily dismiss it within the limits afforded by Federal Rule of Civil Procedure 41.
Lynch's current requests for additional time pertain to Defendants' Motion—filed March 1, 2017—which has been awaiting adjudication for several months. The opposition to the Motion was originally due in late April 2017 based upon the Court's May 19, 2017 hearing date. After repeated requests for extensions of time (see Dkt. Nos. 52, 54, 56), each one approved by the Court (see Dkt. Nos. 53, 55, 57), Lynch eventually filed her Opposition on July 25, 2017. Defendants filed their Reply on August 14, 2017, and having done so, Lynch now claims to need additional time to respond. See Dkt. Nos. 64 and 65. No response, however, is warranted at this time. See Stewart v. Bezy, 473 Fed. Appx. 752, 753 (9th Cir. 2012) (Although a pro se litigant is afforded some degree of leniency "a district court need not extend deadlines indefinitely.").
Lynch is not entitled to file any additional briefing with respect to Defendants' Motion, nor is an extension of six weeks justified in order to accomplish such a filing. Lynch's July 25, 2017 filings were her response to Defendants' Motion. To the extent she now asks for an extension of time in which to submit a sur-reply, leave of court is denied.
To the extent Lynch requests a further extension of time in which to file an amended complaint, any such motion is DENIED. Lynch failed to include the proposed amended complaint for consideration. See LR10.3. Lynch will suffer no prejudice, in any event, given that limited leave to amend has been afforded in conjunction with the Court's ruling on Defendants' Motion.
For the foregoing reasons, Defendants' Motion to Dismiss is GRANTED. Dkt. No. 49. Lynch's requests to extend the briefing deadlines to allow her to supplement her opposition and amend her complaint are DENIED. Dkt. Nos. 64 and 65.
Lynch is once more granted limited leave to file an amended complaint, consistent with the terms of this Order. Lynch is cautioned that failure to file an amended complaint by
IT IS SO ORDERED.
